Participants:
Series Code: LI
Program Code: LI190436B
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00:04 Welcome back to the Liberty Insider.
00:07 Before the break, we were into the weeds 00:10 of a very perplexing series of court decisions 00:16 revolving around religious rights 00:19 being applied at an execution. 00:22 So continue with the second case 00:23 that really... 00:25 Yes, so this man... 00:27 Complicates the matter even further. 00:28 Yes. 00:29 Yes, this is a very strange development, 00:32 unexpected and hard to understand frankly. 00:37 So in this case, it was almost identical facts 00:41 except that the prisoner was a Buddhist. 00:44 And in this case, 00:47 the court not only accepted the case, 00:51 and said that 00:54 he was entitled to a hearing on, 00:59 you know, whether he was entitled 01:01 to have the Buddhist advisor in the case, 01:04 but actually Justice Kavanaugh of all people 01:08 whom, you know, I gotten the impression 01:11 that he was going to shape up as another Scalia like figure 01:15 on the far right. 01:16 But he actually wrote a concurrence 01:18 that was very strong and quoted the same cases 01:22 that Justice Kagan has quoted in her dissent 01:25 just a few weeks earlier. 01:27 So affirming the right 01:30 to be free of religious discrimination 01:32 and to have all religious beliefs, 01:36 you know, treated equally by the government. 01:38 So this was a very interesting development. 01:41 It was, as I said, in my blog, 01:44 it was a very welcome development. 01:47 So which one sets the precedent? 01:50 Well, the first one doesn't really set a precedent 01:56 because it wasn't decided on the merits. 01:59 It was decided on procedural grounds. 02:01 So there is... 02:03 Well, then it's better than bad that the better one, 02:07 they at least made a better effort through. 02:09 Yes. 02:11 And the question is 02:12 why did the court reverse itself 02:14 in a matter of a few weeks? 02:16 And, of course, technically... 02:18 Maybe the lunch service wasn't as good the previous. 02:23 Technically, it wasn't a reversal 02:25 because in both cases, they use timeliness 02:28 as the, I call it an excuse. 02:32 The first case they said he wasn't timely, 02:35 the second case, they said that he was timely. 02:37 But frankly, if you look at the facts, 02:39 that is completely false 02:43 because as I said, in the first case 02:46 he only waited five days. 02:48 In the second case, 02:49 he had known the policy had been in place since 2012. 02:54 His attorney should have known about it, 02:55 and even if he didn't, 02:57 he was sent a letter about it weeks before. 03:01 And he waited up until 03:04 I think it was the week before 03:06 he filed an appeal in state court, 03:08 and then he filed his appeal with the Supreme Court 03:11 or with the federal court 03:13 just a day before his... 03:15 So them saying 03:16 that in his case, he was timely 03:19 is completely inconsistent with the facts. 03:22 But it would seem to me in the interests of justice, 03:26 since these are cases 03:29 that have gone to the highest court 03:30 for the particular look-see, 03:33 and since most people spend years on death row. 03:37 Justice is still served by, 03:39 this is now extraordinary by definition 03:41 that the high court's looking at it, 03:43 wouldn't they allow extra breather time 03:47 to resolve the real issue, whether or not it came to time. 03:51 Well, they should. 03:53 Because the court moves slow anyway. 03:55 They should do that. 03:57 But again, 03:58 they like to resolve things on technical grounds 04:00 when they can to avoid the merits. 04:04 Which also goes against my view, 04:05 I don't see that you get a fuss with me, 04:08 but I'd have to throw at it. 04:09 I see the code reluctant most times. 04:14 They'll dodge it if they can at all counts. 04:17 And then they get into trouble, 04:18 like the case that lies behind 04:25 one of the biggest social changes of years, 04:27 the Lawrence v. Kansas case, 04:29 they would try to dodge it, 04:31 they instead looked at privacy issues. 04:34 And by settling privacy, which they had to, 04:37 they empowered the whole gay movement. 04:40 But they weren't intending, I can't see any evidence. 04:43 They intended to open the gates on gay behavior at the time, 04:48 they might judge differently now. 04:53 That there was unintended, in other words, 04:54 they were unintended consequences. 04:56 Right. 04:57 But they weren't intending, 04:59 you know, great far reaching decision. 05:02 Well, it's interesting. 05:04 I also pointed out in my article 05:05 that that Tom, 05:08 I mean, sorry, Roberts, the Chief Justice 05:12 has developed a reputation of overruling, 05:15 they call it stealth overruling, 05:18 overruling a case without actually overruling it. 05:21 And how do you that? 05:22 So well, different ways, 05:26 making a case a really narrower, 05:29 or there's a lot of different ways 05:31 that it can be done. 05:33 But the interesting thing about this case 05:37 is the way that the court just 05:40 about faced so suddenly. 05:43 And there's a lot of speculation 05:46 about why that was done. 05:48 And some I read a blog 05:51 that I was just actually quoted 05:53 Ilya Somin from George Mason University law school. 05:57 I know that name, I must have read article. 05:59 Yeah, he has a blog 06:01 that was actually quoted in multiple and his viewpoint. 06:06 He said there are two possible. 06:07 He said, discounting the stated reason, 06:10 which was timeliness, which doesn't make any sense. 06:13 There are two possible reasons 06:14 that one of them is just Islamophobia, 06:20 because that was the first case involved a Muslim 06:23 and the second case 06:25 involved a white Buddhist, that was... 06:26 Now Buddhism is no threat to anyone. 06:28 That was the difference in the cases. 06:31 But he said, 06:33 it was seemed most likely to him, 06:35 there was a huge outcry 06:37 about the original Dunn v. Ray case, 06:39 both from the right and the left, 06:42 the right was concerned about Free Exercise rights 06:45 because he was denied the right to have his imam, 06:48 which is clearly a free exercise issue. 06:50 And, of course, the left is concerned 06:52 about the establishment clause, 06:53 so both sides were railing against this decision. 06:58 So he comes out, and I agree with him 07:01 that it really was the court saying, 07:04 oops, we made a mistake, 07:05 we need to do over to make it clear 07:08 that we're not eviscerating 07:10 the concept of do not mention the trial. 07:11 So at the end of the day, 07:13 it's not as bad, it's just a bad chapter, 07:15 but that is not bad in future. 07:18 No, it actually is... 07:21 However, it's interesting... 07:25 Oh, the other interesting thing about the case 07:27 is that Thomas's view of non-neutrality, 07:32 his distinction between monotheism and non-monotheism, 07:37 the interesting thing about this case 07:38 is that it involves a non-monotheist, 07:41 and he was given equal rights. 07:43 So it makes me wonder, 07:46 you know, I don't know 07:47 what Kavanaugh's position is on this issue, 07:50 but it makes me wonder 07:51 if Kavanaugh is not a subscribing 07:54 to Thomas's view on... 07:56 Of course, it's also different in facts 07:58 because Thomas's view, at least to this point, 08:01 has only involved ceremonial issues, 08:03 like prayer in Congress and stuff like that. 08:05 I hope you're wrong about fellow travelers, Thomas. 08:10 And I don't read everything, but I get the impression, 08:12 Thomas's views are not very nuanced. 08:15 No, they're not. 08:16 So, and most judges are, 08:19 so I can't see... 08:22 But it'll be interesting to see how Kavanaugh shapes up 08:26 because so far, 08:30 it was a surprise to me to read that concurrence 08:33 and to see that he was clearly, 08:35 of course, that is the law. 08:38 There's no question 08:39 that that is what the law is right now. 08:41 So if you're not going to overrule 08:44 or set aside the law, 08:46 you have to accept that. 08:47 But the fact that he would openly 08:50 cast his vote on that side is an interesting development. 08:54 And hopefully, it's a good sign for the future 08:56 although I'm cautious about that. 09:01 Just to jump off, and perhaps from your point, 09:04 a radical different direction, 09:06 you know, Christianity, 09:07 or Christians in the early days of the religion, 09:11 or of the movement, 09:12 and the early days of the Roman Empire 09:14 were regularly executed. 09:17 You read Revelation, and at the end of time, 09:20 Christians are going to face execution again. 09:25 Do you see reason to be troubled 09:27 that the US persists in hanging on 09:30 to capital punishment the way it does, 09:33 and then these loaded discussions, 09:35 do you think we're in a never, never land 09:38 where the court could end up endorsing the ultimate penalty 09:43 for religious dissidents in the US? 09:45 It certainly could happen. 09:49 I don't see any evidence right now 09:52 that that's likely to happen in the immediate future, 09:54 of course, there could be a crisis 09:56 that changes everything. 09:58 And I don't really see the death penalty per se 10:01 as being a big issue as far as that's concerned 10:05 because if there's a crisis, 10:08 all bets are off, things change. 10:11 So I don't see that immediately. 10:15 I think it would have to involve 10:17 a precipitating crisis. 10:18 But I do see that definitely, 10:21 the court is moving in a very dangerous direction 10:23 in terms of restricting religious rights 10:26 for people who are not Christians, 10:28 and that's my biggest concern. 10:34 Years ago, visiting the Dominican Republic, 10:37 I was told they're part of the story 10:40 of the extermination of the native populations 10:43 of the lands that Columbus had discovered. 10:47 And one of the last chieftains they captured 10:51 was taken to his point of execution, 10:54 where they intended to horribly mutilate him 10:58 before they killed him. 10:59 And they offered him the chance to convert to Christianity. 11:02 They said, "We'll give you a quick death if you convert, 11:05 and then you go to heaven." 11:07 And he said, "Will there be any Christians there?" 11:10 And they said, "Oh, of course, 11:11 all the Christians will be there." 11:13 And he said, "No, no, kill me. 11:14 I don't want to go there." 11:16 We need to be careful 11:17 as a so called Christian nation, 11:20 not a Christian government, 11:22 in the West and in particular, in the United States, 11:25 where there is the death penalty 11:26 that we don't project 11:28 a very unchristian attitude in even administering 11:32 the severest of civil penalties. 11:35 We're all creatures of a Creator God. 11:37 We have dignity, 11:39 and we have rights to acknowledge him 11:40 particularly at that moment when some civil power, 11:44 some civil entity deprives us of life. 11:49 For Liberty Insider, this is Lincoln Steed. |
Revised 2019-05-16